Ga. Comp. R. & Regs. R. 160-4-7-.02 - Free and Appropriate Public Education (FAPE)
(1)
GENERAL.
(a) A free appropriate public education
(FAPE) must be available to all children residing in the State between the ages
of 3 and 21, inclusive, including children with disabilities who have been
suspended or expelled from school, as provided for in
160-4-7-.18 Discipline.
[34 C.F.R. §
300.101(a);
34 C.F.R. §
300.530(d)]
(b) If a student is receiving services upon
reaching age 22, the LEA shall have a written procedure that identifies a
process for completing services to which the adult student has been previously
entitled. LEAs shall state in writing that the goal is to secure the successful
transition of students to their desired post-school outcomes and will
collaborate to complete that transition by age 22. If a student is still
attending school at age 22, the LEA shall state whether services will cease on
the student's 22nd birthday, or will continue until
the end of the semester or until the end of the current school year. If an
adult student remains after their 22nd birthday, the
LEA shall notify the adult student and the parent(s) that although services
will continue, no individual entitlement to FAPE or other rights under IDEA are
afforded the adult student.
(c)
FAPE for children beginning at age 3. Each LEA must ensure that:
1. The obligation to make FAPE available to
each eligible child residing in the LEA begins no later than the child's third
birthday; and
2. An IEP or an IFSP
is in effect for the child by that date. [34 C.F.R. §
300.101(b)(1)(i) -
ii)]
3. If a child's third birthday
occurs during the summer, the child's IEP Team shall determine the date when
services under the IEP or IFSP will begin. [34 C.F.R. §
300.101(b)(2)]
(d) Children advancing from grade
to grade.
1. Each LEA must ensure that FAPE is
available to any individual child with a disability who needs special education
and related services, even though the child has not failed or been retained in
a course or grade, and is advancing from grade to grade. [34 C.F.R. §
300.101(c)(1)]
2. The determination that a child described
above is eligible under this part, must be made on an individual basis by the
group responsible within the child's LEA for making eligibility determinations.
[34 C.F.R. §
300.101(c)(2)]
(2)
LIMITATION - exception to FAPE for certain ages.
(a) General. The obligation to make FAPE
available to all children with disabilities does not apply with respect to the
following:
1. Adult students aged 18 through
21, who, in the last educational placement, prior to their incarceration in an
adult correctional facility:
(i) Were not
actually identified as being a child with a disability;
(ii) Did not have an IEP in effect; and
[34 C.F.R. §
300.102(a)(2)(i)(A) - (B)]
(iii) Graduates from high school
with a regular high school diploma. This constitutes a change in placement,
requiring written prior notice. [34 C.F.R. §
300.102(a)(3)(iii)]
2. The exception does
not apply to adult students with disabilities, aged 18 through 21, who:
(i) Had been identified as a child with a
disability and had received services in accordance with an IEP but who left
school prior to their incarceration in an adult correctional facility or local
jail;
(ii) Did not have an IEP in
their last educational setting, but who had actually been identified as a child
with a disability; or [34
C.F.R. §
300.102(a)(2)(ii)(A) -
(B)]
(iii) Have graduated from high school but
have not been awarded a regular high school diploma. [34 C.F.R. §
300.102(a)(3)(ii)]
(iv) The term regular high school
diploma does not include an alternative degree that is not aligned with the
State's academic standards such as a special education diploma, certificate of
attendance or a general educational development credential (GED).
[34 C.F.R. §
300.102(a)(3)(iv)]
(b)
Documents relating to exceptions. The LEA must assure that the information it
has provided is current and accurate. [34 C.F.R. §
300.102(b)]
(3)
FAPE--METHODS AND
PAYMENTS.
(a) Georgia may use whatever
State, local, Federal, and private sources of support that are available in the
State to meet the requirements of this Rule. For example, if it is necessary to
place a child with a disability in a residential facility, Georgia could use
joint agreements between the agencies involved for sharing the cost of that
placement. [34 C.F.R. §
300.103(a)]
(b) Nothing relieves an insurer or similar
third party from an otherwise valid obligation to provide or to pay for
services provided to a child with a disability. [34 C.F.R. §
300.103(b)]
(c) The LEA must ensure that there is no
delay in implementing a child's IEP, including any case in which the payment
source for providing or paying for special education and related services to
the child is being determined. [34 C.F.R. §
300.103(c)]
(d) Children with disabilities who are
covered by public benefits or insurance.
1. A
LEA may use the Medicaid or other public benefits or insurance programs in
which a child participates to provide or pay for services required under IDEA,
as permitted by the public benefits or insurance [34 C.F.R. §
300.154(d)(1)] except -
(i) With regard to services required to
provide FAPE, the LEA may not require the parents to sign up for or enroll in
public benefits or insurance programs in order for their child to receive FAPE;
[34 C.F.R. §
300.154(d)(2)(i)]
(ii) The LEA may not require the parents to
incur any out-of-pocket expenses such as the payment of a deductible or co-pay
amount incurred in filing a claim for services provided, but may pay the cost
the parents would otherwise be required to pay; and [34 C.F.R. §
300.154(d)(2)(ii)]
(iii) The LEA may not use a
child's benefits under a public benefits or insurance program if that use would
-
(I) Decrease available lifetime coverage or
any other insured benefit;
(II)
Result in the family paying for services that would otherwise be covered by the
public benefits or insurance program and are required for the child outside of
the time the child is in school;
(III) Increase premiums or lead to the
discontinuation of benefits or insurance; or
(IV) Risk loss of eligibility for home and
community-based waivers, based on aggregate health-related expenses; and
[34 C.F.R. §
300.154(d)(2)(iii)]
2. The LEA
shall obtain parental consent prior to accessing a child's or parent's public
benefits or insurance for the first time and after providing notification to
the child's parents consistent with paragraph (3)(d)3. of this rule and
34 C.F.R. §
300.154(d)(2)(v). The
parental consent to access a child's or parent's public benefits or insurance
shall:
(i) Meet the requirements of
34 C.F.R. §
99.30 and
34 C.F.R. §
300.622 by specifying the personally
identifiable information that may be disclosed (e.g., records or information
about the services that may be provided to a particular child), the purpose of
the disclosure (e.g., billing for services provided under IDEA), and the agency
to which the disclosure may be made (e.g. the Georgia Department of Community
Health); and
(ii) Specify that the
parent understands and agrees that the LEA may access child's or parent's
public benefits or insurance to pay for services provided under IDEA.
[34 C.F.R. §
300.154(d)(2)(iv)]
3. Prior to accessing a
child's or parent's public benefits or insurance for the first time, and
annually thereafter, the LEA shall provide written notification to the child's
parents consistent with 34
C.F.R. §
300.503(c)
that includes:
(i) A statement of parental
consent provisions in 34
C.F.R. §
300.154(d)(2)(iv)(A) -
(B);
(ii) A statement of the "no cost" provisions
in 34 C.F.R. §
300.154(d)(2)(i) -
(iii);
(iii) A statement that the parents have the
right under 34 C.F.R. part 99 and 34 C.F.R. part 300 to withdraw their consent
to disclosure of their child's personally identifiable information to the
agency responsible for the administration of Georgia's public benefits or
insurance program at any time; and
(iv) A statement that the withdrawal of
consent or refusal to provide consent under 34 C.F.R. part 99 and 34 C.F.R.
part 300 to disclose personally identifiable information to the agency
responsible for the administration of Georgia's public benefits or insurance
program does not relieve the LEA of its responsibility to ensure that all
required services are provided at no cost to the parents. [34 C.F.R. §
300.154(d)(2)(v)]
(e) Children with
disabilities who are covered by private insurance.
1. With regard to services required to
provide FAPE to an eligible child, a LEA may access the parents private
insurance proceeds only if the parents provide consent. [34 C.F.R. §
300.154(e)]
2. Each time the LEA proposes to access the
parents' private insurance proceeds, the LEA must -
(i) Obtain parental consent; and
(ii) Inform the parents that their refusal to
permit the LEA to access their private insurance does not relieve the LEA of
its responsibility to ensure that all required services are provided at no cost
to the parents. [34 C.F.R.
§
300.154(e)(2)(i) -
(ii)]
(4)
RESIDENTIAL
PLACEMENT.
If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child. [34 C.F.R. § 300.104]
(5)
ACCESSIBLE INSTRUCTIONAL
MATERIALS.
(a) LEAs will provide print
instructional materials in specialized, accessible formats (i.e. Braille,
audio, digital, large-print, etc.) to children who are blind or other print
disabled in a timely manner. LEAs will take all reasonable steps to ensure that
children with print disabilities have access to their accessible format
instructional materials at the same time as students without print
disabilities. [See 34 C.F.R.
§
300.172(a); §
300.172(b)(4)]
1. Print instructional materials include
textbooks and related core materials that are required by the LEA for use by
children in the classroom.
2.
Specialized formats refer to Braille, audio, or digital text which is
exclusively for use by children who are blind or other persons with print
disabilities. Large print formats are also included when the materials are
distributed exclusively for use by children who are blind or other persons with
disabilities. [17 U.S.C.
§
121(d)(4)]
(i) Specialized formats do not include
altering the content (e.g. breadth, depth, or complexity) of the print
instructional material in the production of accessible instructional
materials.
3. Children
who are blind or print disabled include:
(i)
Children whose visual acuity, as determined by a competent authority, is 20/200
or less in the better eye with correcting glasses, or whose widest diameter if
visual field subtends an angular distance no greater than 20 degrees.
(ii) Children whose visual disability, with
correction and regardless of optical measurement, is certified by competent
authority as preventing the reading of standard printed material.
(iii) Children certified by competent
authority as unable to read or unable to use standard printed material as a
result of physical limitations.
(iv) Children certified by competent
authority as having a reading disability resulting from organic dysfunction and
of sufficient severity to prevent their reading printed material in a normal
manner. [36 C.F.R. §
701.6(b)(1)]
5. The following groups of
individuals are eligible to certify children who are blind or other print
disabled for specialized format instructional materials:
(i) In cases of blindness, visual disability,
or physical limitations "competent authority" is defined to include doctors of
medicine, doctors of osteopathy, ophthalmologists, optometrists, registered
nurses, therapists, professional staff of hospitals, institutions, and public
or welfare agencies (e.g., social workers, case workers, counselors,
rehabilitation teachers, and superintendents).
(ii) In the case of a reading disability from
organic dysfunction, competent authority is defined as doctors of medicine who
may consult with colleagues in associated disciplines. [36 C.F.R. §
701.6(b)(2)]
(b) In order to insure
the timely provision of high quality, accessible instructional materials to
children who are blind and other print disabled, the LEA must adopt the
National Instructional Materials Accessibility Standard (NIMAS).
1. The NIMAS refers to a standard for source
files created by textbook publishers for the purpose of producing accessible
instructional materials. NIMAS files are not child ready files and will be used
by authorized users and entities to produce accessible materials for children
who are blind and visually impaired.
2. Children who are certified as blind or
other print disabled are eligible to receive accessible instructional materials
produced with NIMAS files.
(c) The LEA may coordinate with the National
Instructional Materials Access Center (NIMAC) to facilitate the production and
delivery of accessible materials to children who are blind or other print
disabled.
1. The NIMAC refers to the central
repository which is responsible for processing, storing, and distributing NIMAS
files of textbooks and core instructional materials.
2. LEAs must provide written assurances to
the GaDOE regarding their intention to coordinate with the NIMAC.
3. LEAs coordinating with the NIMAC will
require textbook publishers to deliver the contents of the print instructional
materials to the NIMAC in a NIMAS format file on or before delivery of the
print instructional materials. The files will be used in the production of
accessible instructional materials.
4. LEAs coordinating with the NIMAC may also
purchase instructional materials from the textbook publishers that are produced
in or may be rendered in a specialized format.
(d) If the LEA chooses not to coordinate with
the NIMAC, assurances must be made to the GaDOE that the LEA will provide
accessible instructional materials to children who are blind or other print
disabled in a timely manner. LEAs will take all reasonable steps to ensure that
students with print disabilities have access to their accessible format
instructional materials at the same time as students without print
disabilities. [34 C.F.R.
§
300.210(b)(2)]
1. LEAs that do not coordinate with the NIMAC
will be responsible for purchasing, producing or otherwise providing
high-quality, accessible instructional materials in specialized formats in a
timely manner for children who are blind or print disabled. LEAs will take all
reasonable steps to ensure that students with print disabilities have access to
their accessible format instructional materials at the same time as students
without print disabilities.
(e) The LEA is also responsible for providing
accessible materials to children who require instructional materials in
accessible formats, but who do not qualify for the materials under the
definition of blind and other print disabled or who need materials that can not
be produced from NIMAS. [20
U.S.C. §
1413(a)(6)]
(f) Some children who require
accessible instructional materials will need assistive technology to access the
materials (e.g. text reader to read digital file, screen magnification program
to read digital file).
(6)
ASSISTIVE TECHNOLOGY.
(a) Children with disabilities who require
assistive technology in order to receive a free appropriate public education
(FAPE) are eligible for assistive technology devices or services, or both, as a
part of the child's special education, related services, or supplemental aids
and services.
(b) Each IEP Team
will consider whether or not a child requires assistive technology devices and
services in order to receive a free appropriate public education (FAPE).
Minimal compliance will be indicating the appropriate response in the
Consideration of Special Factors section of the IEP. Assistive technology can
also be addressed when considering other factors such as communication needs
and instruction in the use of Braille. [34 C.F.R. §
300.324]
(c) An assistive technology
evaluation may be required if appropriate assistive technology solutions are
not known to the child's IEP Team through the consideration process. This
evaluation shall be conducted by a multidisciplinary team of professionals
knowledgeable about assistive technology devices in the technology areas being
assessed. The child and family should also be included in this evaluation
process. The evaluation should result in recommendations for assistive
technology devices and services, if required.
(d) If the child's IEP Team determines that
assistive technology devices or services are required for the child to receive
a FAPE, a statement to that effect must be included in the child's IEP.
1. If assistive technology is required for
the child to participate in districtwide or Statewide testing, the need for
technology should be documented in the appropriate section of the IEP and
provided to the child.
2. If
assistive technology devices or services, or both, are required for a child who
is blind or other print disabled to access alternative format instructional
materials, the assistive technology should be documented in the IEP and
provided to the child.
(e) If the IEP Team determines that the child
with a disability requires school- purchased assistive technology at home or in
other settings to receive a FAPE, the assistive technology must be provided to
the child at no cost to the parent. The need for assistive technology in the
non-school settings should be documented in the child's IEP. [34 CFR §
300.105]
(7)
EXTENDED SCHOOL YEAR
SERVICES.
(a) Each LEA must ensure that
extended school year services are available as necessary to provide a FAPE.
[34 C.F.R. §
300.106(a)(1)]
1. Extended school year services must be
provided only if a child's IEP Team determines, on an individual basis, that
the services are necessary for the provision of FAPE to the child.
[34 C.F.R. §
300.106(a)(2)]
2. In implementing the requirements of this
section, the LEA may not -
(i) Limit extended
school year services to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or
duration of those services. [34 C.F.R. §
300.106(a)(3)(i) -
(ii)]
(b) Definition. As used in this Rule, the
term extended school year services means special education and related services
that -
1. Are provided to a child with a
disability:
(i) Beyond the normal school year
of the LEA;
(ii) In accordance with
the child's IEP;
(iii) At no cost
to the parents of the child; and
(iv) Meet the standards of the State.
[34 C.F.R. §
300.106(b)(1) - (2)]
(8)
NONACADEMIC SERVICES.
(a) Each LEA must take steps, including the
provision of supplementary aids and services determined appropriate and
necessary by the child's IEP Team, to provide nonacademic and extracurricular
services and activities in the manner necessary to afford children with
disabilities equal opportunity for participation in those services and
activities. [34 C.F.R.
§
300.107(a)]
(b) Nonacademic and
extracurricular services and activities may include counseling services,
athletics, transportation, health services, recreational activities, special
interest groups or clubs sponsored by the LEA, referrals to agencies that
provide assistance to individuals with disabilities, and employment of
students, including both employment by the LEA and assistance in making outside
employment available. [34
C.F.R. §
300.107(b)]
(9)
PHYSICAL
EDUCATION.
The LEA must ensure that its public schools comply with the following:
(a) General. Physical
education services, specially designed if necessary, must be made available to
every child with a disability receiving FAPE, unless the LEA enrolls children
without disabilities and does not provide physical education to children
without disabilities in the same grades. [34 C.F.R. §
300.108(a)]
(b) Regular physical education. Each child
with a disability must be afforded the opportunity to participate in the
regular physical education program available to nondisabled children unless -
1. The child is enrolled full time in a
separate facility; or
2. The child
needs specially designed physical education, as prescribed in the child's IEP.
[34 C.F.R. §
300.108(b)]
(c) Special physical education. If
specially designed physical education is prescribed in a child's IEP, the LEA
responsible for the education of that child must provide the services directly
or make arrangements for those services to be provided through other public or
private programs. [34 C.F.R.
§
300.108(c)]
(d) Education in separate
facilities. The LEA responsible for the education of a child with a disability
who is enrolled in a separate facility must ensure that the child receives
appropriate physical education services in compliance with this Rule.
[34 C.F.R. §
300.108(d)]
(10)
FULL EDUCATIONAL
OPPORTUNITY GOAL (FEOG).
Each LEA must have in effect policies and procedures to demonstrate that the LEA has established a goal of providing full educational opportunity to all children with disabilities, aged birth through 21, and a detailed timetable for accomplishing that goal. [34 C.F.R. § 300.109]
(11)
CHARTER SCHOOLS.
(a) Children with disabilities who attend
public charter schools and their parents retain all rights to a FAPE as
described in this Rule. [34
C.F.R. §
300.209(a)]
(b) Charter schools that are
public schools of an LEA. Each LEA must ensure that charter schools that are
public schools of the LEA must -
1. Serve
children with disabilities attending those charter schools in the same manner
as the LEA serves children with disabilities in its other schools, including
providing supplementary and related services on site at the charter school to
the same extent to which the LEA has a policy or practice of providing such
services on the site to its other public schools; and
2. Provide funds to those charter schools at
the same time and on the same basis as the LEA provides funds to the LEA's
other public schools, including proportional distribution based on relative
enrollment of children with disabilities. [34 C.F.R. §
300.209(b)]
(c) Public charter schools that
are LEAs. If the public charter school is an LEA, that charter school is
responsible for ensuring that all of these requirements are met. [34 C.F.R. §
300.209(c)]
(12)
PROGRAM
OPTIONS.
Each LEA shall takes steps to ensure that children with disabilities have available to them the variety of educational programs and services available to nondisabled children in the area served by the LEA, including art, music, and Career, Technical and Agricultural Education. [34 C.F.R. § 300.110]
(13)
ROUTINE CHECKING OF HEARING
AIDS/OTHER COMPONENTS.
(a) Hearing
aids. Each LEA must ensure that hearing aids worn in school by children with
hearing impairments, including deafness, are functioning properly.
[34 C.F.R. §
300.113(a)]
(b) External components of surgically
implanted medical devices. Each LEA must ensure that the external components of
surgically implanted medical devices are functioning properly. The LEA is not
responsible for the post-surgical maintenance, programming or replacement of
the medical device that has been surgically implanted (or of an external
component of the surgically implanted medical device). [34 C.F.R. §
300.113(b)]
(14)
PROHIBITION ON
MANDATORY MEDICATION.
(a) Each LEA
must prohibit personnel from requiring parents to obtain a prescription for
substances identified under schedules I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c))
for a child as a condition of attending school, receiving an evaluation or
receiving services. [34
C.F.R. §
300.174(a)]
(b) Nothing under paragraph
(14)(a) above shall be construed to create a prohibition against teachers and
other school personnel consulting or sharing classroom-based observations with
parents or guardians regarding a child's academic and functional performance,
or behavior in the classroom or school, or regarding the need for evaluation
for special education or related services as it relates to child find.
[34 C.F.R. §
300.174(b)]
Notes
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